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Jurisdictions to watch on local enforcement, part one: Orange County, California

This entry is the second in a series on the involvement of local law enforcement agencies in immigration enforcement under the Trump Administration’s January 25th executive orders. Please see the January 26th introductory entry for context.

Last Thursday I introduced my ongoing database project looking at local police cooperation with the Trump administration on immigration enforcement. I began this project before Trump signed a pair of immigration-related executive orders on January 25th; if anything, those orders made the work of tracking and assessing the impact of local police involvement in immigration enforcement more important than ever. In the long term, these orders also have the potential to make this work exponentially more difficult, as the orders appear to signal the administration’s intention to make immigration enforcement broadly the work of law enforcement agencies nationwide, without the memorandums of agreement, training, and oversight called for under section 287g of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

For the time being, however, jurisdictions with active 287g agreements, or previous agreements that were rescinded by the Obama administration under its reform of the program in 2012, are in the best position to ramp up their enforcement efforts quickly and to significant effect. In the relatively small universe of these jurisdictions (roughly 75 current and former 287g holders) a handful stand out as places where local and national advocates should remain vigilant. These jurisdictions are not limited to a particular region – they are in the Midwest and the Mid-Atlantic, the deep South and the Northeast. They are even, as the current profile details, in liberal California. What they share instead of a region is a handful of key characteristics:

1) They have operated consistently under the same chief executive since before the Obama administration’s efforts to reform 287g. In most cases, this means that the same individual who signed the jurisdiction’s first 287g memorandum of agreement is still making the relevant executive decisions about involvement in immigration enforcement moving forward.

2) They are (with few exceptions) county law enforcement agencies headed by elected sheriffs.

3) They have started deportation proceedings for significant numbers of immigrant arrestees under their 287g programs in the past.

4) They have clear incentives for directly involving their officers in immigration enforcement. While these incentives are often political, they are often financial as well, with direct income and/or indirect ‘economic activity’ arising from close ties to private/for-profit immigrant detention facilities located within the jurisdiction, and/or Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a per-day fee to detain immigrants in the local jail.

The first of our “jurisdictions to watch” – Orange County, California – fulfills all four of these criteria. Below, in a template that I will attempt to maintain throughout the other jurisdictional profiles to follow, I will lay out the data that makes Orange County an important jurisdiction for immigrant advocates to invest time and resources in, provide a narrative outline of how Sheriff Sandra Hutchens’ and her agency’s approach to immigration enforcement has developed since its initial 287g involvement, and provide context around avenues for potentially fruitful advocacy efforts in support of Orange County’s immigrant communities. As ever I welcome input, particularly from readers who know the jurisdiction intimately. Much of the data discussed comes from prior to the Obama administration’s reorganization of the 287g program in 2012, so some aspects of the jurisdiction’s involvement in immigration enforcement could have changed significantly in the ensuing years; I note in the narrative section where open source evidence indicates that this is the case.


SHERIFF-CORONER: Sandra Hutchens.

Hutchens, a Republican, was first appointed Sheriff by the Orange County Board of Supervisors in June 2008, following the resignation of her elected predecessor, Mike Carona, after his indictment on corruption charges. Hutchens has since won reelection twice, in non-partisan elections in 2010 and 2014. Since her second reelection, Hutchens herself has come under fire for a legal scandal involving the department’s use of confidential informants.

ARRESTEES PROCESSED FOR DEPORTATION UNDER 287G: 1,866 in 2012 – second only to San Bernardino County in California.

ACTIVE IMMIGRANT DETENTION FACILITIES: Theo Lacy Facility & James Musick Facility operated under IGSA with OC Sheriff’s Dept, making “a maximum of 838 beds available to ICE’s Enforcement and Removal Operations.” Santa Ana City Jail also under ICE contract until June 30, 2020 (when city council claims it will be allowed to expire).

AVERAGE DAILY POPULATION (ADP) OF IMMIGRANT DETAINEES: These 3 facilities, plus a handful of others, held an average of 961 immigrants on any given day throughout 2012. Per diem/per detainee compensation was $82 in 2006 (for City of Santa Ana – OC Sheriff’s rate unknown). Assuming 3% annual increase and consistent ADP, a conservative estimate of 2016 gross receipts for detention in Orange County would be ($104 * 961 detainees * 365 days) = $36.5 million. Assuming consistent processing numbers, about $12 million ($104 * 1,866 processed for deportation * 60 day average stay), or one third, of these gross receipts arose directly from the Orange County Sheriff’s enforcement activity under 287g.

HISTORY OF 287G IN ORANGE COUNTY, CALIFORNIA: Orange County signed its original 287g agreement in 2006, under Hutchens’ predecessor Mike Carona. Hutchens has since renewed the agreement as recently as June 2016, making it the sole remaining active 287g agreement in all of California. Local media questioned the value of the program as early as 2007, with Sheriff Carona himself expressing mixed views on the usefulness of local police involvement in immigration enforcement. Local activists have carried out protest actions against the program as recently as 2016. In 2014, the County changed its policy on responding to ICE detainers due to liability concerns stemming from Miranda-Olivares v. Clackamas County, with Sheriff Hutchens informing ICE in a letter that the Department would “no longer hold inmates with ICE detainers beyond their scheduled release date, absent a judicial determination of probable cause”, though this letter also indicates that “ICE may take custody of the inmate so long as it occurs during OCSD’s release process and does not require additional detention of the inmate by OCSD.”

Taken together with the exact language contained in Orange County’s 287g agreement, detailing the authority that ICE has granted OCSD personnel to exercise over immigration enforcement, this equivocation raises questions about whether and to what degree the OCSD has backed off from its involvement in immigration enforcement in response to Miranda-Olivares v. Clackamas. The OCSD’s 287g agreement authorizes designated Sheriff’s Deputies to perform all of the functions of immigration enforcement up to and including the issuing of immigration detainers, raising the possibility that OCSD could arrest an individual, screen them for deportability, issue a detainer, and transfer them to ICE custody in one of the OCSD’s own contracted detention centers without ever actually turning over physical custody of the individual to ICE; whether the ICE agent would need to contribute anything to the process other than a signature is unclear, despite reporting around the issue indicating otherwise.

CONTEXT AROUND CONTINUED IMMIGRATION ENFORCEMENT UNDER 287G IN ORANGE COUNTY, CALIFORNIA: There are clear reasons for California counties to shy away from 287g agreements and other kinds of cooperation with ICE on immigration enforcement, starting with the liability concerns under Miranda-Olivares v. Clackamas discussed above. Indeed, San Bernardino, Riverside, and Los Angeles counties recently rescinded long-running 287g agreements in response to Clackamas, along with the arguably even more stringent requirements of the 2014 California TRUST Act. The act prohibits “a law enforcement official […]from detaining an individual on the basis of a United States Immigration and Customs Enforcement hold after that individual becomes eligible for release from custody” with exceptions for individuals who have been convicted of a narrow range of (mostly violent) crimes.

Sheriff Hutchens has stated clearly and publicly that Orange County “do[es] not violate the California Trust Act,” so it is likely that the act has indeed already reduced significantly the number of individuals processed for deportation under the County’s 287g agreement in the three years since its passage; as further data becomes available, it might become clearer that despite maintaining its 287g memorandum of agreement, Orange County’s immigration policies (or at least their impact on immigrant communities) have been brought in line with the rest of the State’s jurisdictions. California’s legislative environment is arguably among the most pro-immigrant in the country, and continued legislative activism could very well limit the potential for like-minded local jurisdictions to follow the Trump administration’s lead on immigration enforcement. There are limits to the lengths the state government is willing to go in order to protect its immigrant communities, however, as Governor Jerry Brown’s recent veto of the Dignity not Detention Act appears to indicate. California’s advocates and activists would do well to keep a watchful eye on the Orange County Sheriff’s Department in the coming weeks and months.

Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at)jjay.cuny.edu. This has been the first in his series of profiles of “jurisdictions to watch” on local immigration enforcement under the new policies promulgated by President Trump’s January 25th executive orders. Next up: Etowah County, Alabama.

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